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HR D&I Leadership TrainingPneumos LLC Consulting Agreement Effective as of 1%, 2020, Pneumos LLC, a Delaware corporation ("Pneumos") and ("Client"), agree as follows: 1. Services; Payment; No Violation of Rights or Obligations. Pneumos agrees to undertake and complete the Services (as defined in Exhibit A). As the only consideration due Pneumos regarding the subject matter of this Agreement, Client will pay Pneumos as (and only as) expressly stated in Exhibit A. Unless otherwise specifically agreed upon by Client in writing (and notwithstanding any other provision of this Agreement), all activity relating to Services will be performed by and only by Pneumos or by employees of Pneumos who have been approved in writing in advance by Client. Pneumos agrees that itwill not (and will not permit others to) violate any agreement with or rights of any third party or, except as expressly authorized by Client in writing hereafter, use or disclose at any time Pneumos's own or any third party's confidential information or intellectual property in connection with the Services or otherwise for or on behalf of Client. 2. Ownershi • Rights; Proprietary Information; Publicity. a. Client shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other intellectual property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or for or on behalf of Pneumos during the term of this Agreement that relate to the subject matter of or arise out of or in connection with the Services or any Proprietary Information (as defined below) (collectively, "Inventions") and Pneumos will promptly disclose and provide all Inventions to Client. All Inventions are work made for hire to the extent allowed by law and, in addition, Pneumos hereby makes all assignments necessary to accomplish the foregoing ownership. Pneumos shall assist Client, at Client's expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Pneumos hereby irrevocably designates and appoints Client as its agent and attorney- in-fact, coupled with an interest, to act for and on Pneumos's behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Pneumos and all other creators or owners of the applicable Invention. b. Pneumos agrees that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) learned or obtained by or for or on behalf of Pneumos during the period that Pneumos is to be providing the Services that relate to Client orthe business or demonstrably anticipated business of Client or in connection with r }T - . T, '� RL -1— 7T.: L the Services, or that are received by or for Client in confidence, constitute "Proprietary Information." Pneumos shall hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. However, Pneumos shall not be obligated under this paragraph with respect to information Pneumos can document is or becomes readily publicly available without restriction through no fault of Pneumos. Upon termination or as otherwise requested by Client, Pneumos will promptly provide to Client all items and copies containing or embodying Proprietary Information, except that Pneumos may keep its personal copies of its compensation records and this Agreement. Pneumos also recognizes and agrees that Pneumos has no expectation of privacy with respect to Client's telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Pneumos's activity, and any files or messages, on or using any of those systems may be monitored at any time without notice. C. Client acknowledges that as a partner to Pneumos, it will receive access to the Pneumos learning platform, which includes proprietary and confidential tools, modules, curriculum and information owned by Joel A. Brown & Pneumos. In recognition of that, the Client agrees not to copy, duplicate, reproduce, or distribute the platform shared by Pneumos for any learning delivered outside of the relationship with Pneumos, unless permitted in writing by Pneumos. The proprietary Pneumos content is not to be transferred to any external organizations or third -party organization without the specific written consent of Pneumos. d. As additional protection for Proprietary Information, Pneumos agrees that during the period over which it is to be providing the Services (i) and for one year thereafter, Pneumos will not directly or indirectly encourage or solicit any employee or Pneumos of Client to leave Client for any reason and (ii) Pneumos will not engage in any activity that is in any way competitive with the business or demonstrably anticipated business of Client, and Pneumos will not assist any other person or organization in competing or in preparing to compete with any business or demonstrably anticipated business of Client. Without limiting the foregoing, Pneumos may perform services for other persons, provided that such services do not represent a conflict of interest or a breach of Pneumos's obligation under this Agreement or otherwise. e. To the extent allowed by law, Section 2(a) and any license granted Client hereunder includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like. Furthermore, Client agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Pneumos may and is hereby authorized to (and to allow others to) use Client's name in connection with promotion of its business, products or services. To the extent any of the foregoing is ineffective under applicable law, Client hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible. Client will confirm any such ratifications and consents from time to time as requested by Pneumos. If any other person is in any way involved in any Services, Client will obtain the foregoing ratifications, consents and authorizations from such person for Pneumos's exclusive benefit. f. If any part of the Services or Inventions or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to Pneumos (or any person involved in the Services) and not assigned hereunder, Pneumos hereby grants Client and its successors a perpetual, irrevocable, worldwide royalty -free, non-exclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in suport of Client's exercise or exploitation of the Services, Inventions, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them). 3. Warranties and Other Obligations. Pneumos represents, warrants and covenants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation Pneumos may have to others; (ii) all work under this Agreement shall be Pneumos's original work and none of the Services or Inventions nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Pneumos); (iii) Pneumos has the full right to allow it to provide Client with the assignments and rights provided for herein (and has written enforceable agreements with all persons necessary to give it the rights to do the foregoing and otherwise fully perform this Agreement and, in addition, Pneumos will have each person who may be involved in any way with, or have any access to, any Services or Proprietary Information enter into (priorto any such involvement or access) a binding agreement for Client's benefit that contains provisions at least as protective as those contained herein); (iv) Pneumos shall comply with all applicable laws and Client safety rules in the course of performing the Services; and (v) if Pneumos's work requires a license, Pneumos has obtained that license and the license is in full force and effect. 4. Termination. If either party breaches a material provision of this Agreement, the other party may terminate this Agreement upon five days' notice, unless the breach is cured within the notice period. Client also may terminate this Agreement at any time, with or without cause, upon seven days' notice, but, if (and only if) such termination is without cause, Client shall upon such termination pay Pneumos all unpaid, undisputed amounts due for the Services completed prior to notice of such termination. Sections 2 (subject to the limitations set forth in Section 2(c)) through 9 of this Agreement and any remedies for breach of this Agreement shall survive any termination or expiration. Client may communicate the obligations contained in this Agreement to any other (or potential) client or employer of Pneumos. 5. Relationship of the Parties; Independent Contractor; No Employee Benefits. Notwithstanding any provision hereof, Pneumos is an independent contractor and is not an employee, agent, partner orjoint venturer of Client and shall not bind nor attempt to bind Client to any contract. Pneumos shall accept any directions issued by Client pertaining to the goals to be attained and the results to be achieved by Pneumos, but Pneumos shall be solely responsible forthe manner and hours in which the Services are performed underthis Agreement. Pneumos shall not be eligible to participate in any of Client's employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Client shall not provide workers' compensation, disability insurance, Social Security or unemployment compensation coverage or any other statutory benefit to Pneumos. Pneumos shall comply at Pneumos's expense with all applicable provisions of workers' compensation laws, unemployment compensation laws, federal Social Security law, the Fair Labor Standards Act, federal, state and local income tax laws, and all other applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors. Pneumos will ensure that its employees, contractors and others involved in the Services, if any, are bound in writing to the foregoing, and to all of Pneumos's obligations under any provision of this Agreement, for Client's benefit and Pneumos will be responsible for any noncompliance by them. Pneumos agrees to indemnify Client from any and all claims, damages, liability, settlement, attorneys' fees and expenses, as incurred, on account of the foregoing or any breach of this Agreement or any other action or inaction by or for or on behalf of Pneumos. 6. Assignment. This Agreement and the services contemplated hereunder are personal to Pneumos and Pneumos shall not have the right or ability to assign, transfer or subcontract any rights or obligations under this Agreement without the written consent of Client. Any attempt to do so shall be void. Client may fully assign and transfer this Agreement in whole or part. 7. Notice. All notices under this Agreement shall be in writing and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice. 8. Miscellaneous. Any breach of Section Z or 3 will cause irreparable harm to Client for which damages would not be an adequate remedy, and therefore, Client will be entitled to injunctive relief with respect thereto in addition to any other remedies. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes, additions, modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties with respect to the subject matter hereof. EXHIBIT A SERVICES The services are as follows (and also include any other work Pneumos performs for Client or related to the Client's actual or proposed business, research or development): Pneumos agrees to facilitate an inclusive leadership workshop for the City of San Rafael, San Rafael, on Monday, March 9, 2020. FEES/EXPENSES Client will pay Pneumos a services fee of $6,000.00 (USD), with $ the entirety of such fee payable upon completion of the Services. The total fee shall include all reasonable expenses necessary to complete the services listed previously. 9. Arbitration. Any controversy or claim (except those regarding Inventions, Proprietary Information or intellectual property) arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing party will be entitled to receive from the non -prevailing party all costs, damages and expenses, including reasonable attorneys' fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Client hereby consents to the arbitration in San Francisco, California. NOTICE: This agreement does not affect any immunity under 18 USC Sections 1833(b) (1) or (2), which read as follows (note that for purposes of this statute only, individuals performing work as contractors or Pneumos are considered to be employees): (1) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. (2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order. Client 6 B y: Name: Schutz Title: City Manager Joel Brown �o /Ty ►t'I T CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Human Resources Project Manager: Shibani Nag Extension: x3069 Contractor Name: Pneumos Contractor's Contact: Joel Brown Contact's Email: joel@pneumos.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DEPARTMENT 1 Project Manager DESCRIPTION COMPLETED DATE a. Email PINS Introductory Notice to ContractorClick here to •Iter a date. b. Email contract (in Word) and attachments to City 3/5/2020 Attorney c/o Laraine.Gittens@cityofsanrafael.org REVIEWER Check/Initial 2 City Attorney a. Review, revise, and comment on draft agreement Click here to and return to Project Manager enter a date. ❑ b. Confirm insurance requirements, create Job on Click here to Department Director PINS, send PINS insurance notice to contractor enter a date. ❑ 3 Approval of final agreement form to send to Click or tap ❑ contractor to enter a Project Manager _ Forward three (3) originals of final agreement to date. 4 Click here to contractor for their signature enter a date. 5 Project Manager When necessary, contractor -signed agreement ❑ N/A ` agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed3 n,I /`7ZV1 agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 3/�� 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and y -� forwards copies to Project Manager 0 0